tv Book TV After Words CSPAN December 14, 2009 12:00am-1:00am EST
that's an interesting question because you want the book to reflect the subject and when you're dealing with you also want a title that will urge people to pick it up and read it, and at first my publisher and editor and i were thinking should we call scalia, he is well-known enough you could probably get away with that but then we felt we wanted to promote something larger because he is so much larger and american original as you know is a pawn in some ways and first it reflects his italian-american street, first generation story which is part of this book about the work of original is tied to his legal approach of our ritualism and which he looks back of the 18th-century drafters of the constitution wanted in the document and how it should be interpreted today. so, we thought that that was actually the committee i have to
say american original and reflects him as an original, as a first-generation american and also a proponent of the original is some legal of fury. >> host: and he is an original in a way and there is no one that has ever been like him on the supreme court; is that also what you thought about? >> guest: yes, and in fact so many people are intrigued by my choice of him because of course for my first biography i did justice sandra day o'connor was a pioneer and natural as a subject but he is in some ways for people who don't know the court, just he's one of the line, he's a conservative certainly, outspoken but why focus so much on him? but he is an original. you know first hand, you've been following him and have been close to him for decades. he's so distinctive and his style, the all-pro viewing with ruth bader ginsburg, hunting with cheney but his approach to
the wall and life is such a wide embrace that he is distinctive among his black brogue it appears. >> host: i think of him so robust and full of life, you mentioned the opera. i think of justice scalia as someone who might have been in an opera because he is a battalion of course, that fits, and he is larger than life and has a force of personality that when he is in a room everyone listens to him and talks to him and that is true in the supreme court, too is in that? you talk about that in your book you have a chapter about his oral argument and what it's like to be in the supreme court with him. >> guest: it's funny hone in on the opera because at one point i describe him as a combination between the [inaudible] you can see him conducting something. there were times i would go to watch him speak and he would stand up and i would start to laugh because he's got this kind of movement about him that is
both operatic but also comical, too. justice thomas said something to me at one point about the way justice scalia even composes his opinions. he sits down at his computer, puts on his classical music of the opera and starts to come looked as if he's doing a symphony. so there is something large and all predict about him. >> host: so you didn't think for a moment that he has four law clerks this it down and write opinions and he just signs their name to them? >> as you know he relies on his clerks to some extent for the research but his writing style is so distinctive, so original that he can hardly be really influenced by clerks or have the clerks to the first draft. justice john paul stevens is another who does his own first draft and in fact justice stevens says i will stop when i leave the bench and justice scalia is the same way and i think the writing shows. >> host: i think it does, too
peery i love to pick up an opinion of justice scalia whether it be a tax or bankruptcy or the most obscure topic and somehow he brings it to life. i think you talk about that a great deal in the book but house and how he is able to write, not everybody can -- the law can be boring. it's not boring when he writes. is in the right? >> guest: , yes -- no, he is very engaged and that is what drew me to him he is engaged in his subject and sort of interested in the world of large, and i found that during our conversations together he would often respond to my questions by answering and then asking other questions just about different ideas, different topics, different things others had said about him. >> host: tell me about his biography. i mean, what made him what he is today? tell me about his upbringing and education and his parents and a little about that.
>> guest: he has an unusual life story that not only was he an only child and a catholic family that he was the only offspring of his generation of these two italian striving parents he had. his mother came from a family of seven but was the only one who bore a child of the group. his father, who had come over from sicily had been one of two kids and he was the only one who had an offspring. his father was in his teens when he came here, knowing no english, very little english and went on to earn a ph.d. at columbia and romance languages and become a professor of romance languages at brooklyn college. very brief any sort. family members said he was always known to have his nose and a book, really couldn't abide silliness, set high standards for his son, the future justice. his mother's side was much more -- they were the ones who were all there. a family of storytellers, family
of jokesters and showman, and there was actually tension between the two parents in terms of kind of where they came from and he picked up a little bit of both in his mother's family they always had a piano. he learned to play the piano when he was young and as you know to this day he loves to sit down and played piano so here he is, his parents actually were married about six or seven years before he came along, so he was very much a wanted child and very much a vote on child of not just his parents, but all of his aunts and uncles, which i think not only made him believe that he should always be the center of attention, but also put quite a burden on him to perform, and his father was quite a demanding individual, and there were a couple of times in my conversations with him the justice said he felt like he never quite satisfied his father which is unusual to say when here he is, he went to harvard law school, he's become justice
of the united states but his father and mother actually passed away while he was still on the u.s. court of appeals for the district of columbia circuit and before he'd been elevated to the supreme court. >> host: did he teach law? >> guest: yes. he taught mostly at the university of chicago. but he also taught a little bit at georgetown university and also -- you're talking up the justice? because his father of course was a professor. he taught at the university of chicago mostly but then also stand to become stanford for a semester and full calendar year and also georgetown. he liked it, but he did not get into it as much as you would have suspected because he is so brainy and intellectual. you would have thought he would have been much more drawn to teaching but easy enough for him to leave africa. he was excited about something that you have enjoyed. he really liked being in the executive branch -- host katulis about the expected -- what was his job and what did he do? >> guest: sure, he started in the nixon administration and he started with a new office created while he was there.
the office of telecommunications policy. and he was general counsel for that and then he moved into more of an administrative position where he was in charge of sort of ideas to streamline the bureaucracy. his break came when president nixon who was in the throes of watergate nominated him to be an assistant attorney general for the office of legal counsel, an office you know well and he was nominated by richard nixon by was not approved until later in august of 1974 after richard nixon had resigned in the aftermath of watergate. so he can essentially a gerald ford appointee and really cut his teeth in the wake of watergate in the ford administration and his very first assignment as an assistant attorney general was to determine who owned the watergate papers and tapes. no easy task right when you come into office. but he -- his opinion on behalf
of that office was next in owned those tapes and other documents from his tenure the congress quickly reversed that and that is why the american public has access to the tapes. >> host: could he replace four assistant -- >> guest: a man named robert dixon and at that time another person you are familiar with, larry silberman, who has gone on to become a federal appeals court judge here in washington, d.c.. mr. silberman was a deputy attorney general, not sure his exact title, but his job was to find a new assistant for the office of legal counsel, and a man by the name of john burroughs, this is sort of like your life, ted, too because you know all these players. john had been a longtime aide in both the nixon and ford administration, and he had the idea that this fellow antonin scalia who served them well in the office of telecommunications policy might feel comfortable in
this kind of crazy post watergate world. as john said this is a time when a lot of republicans are scrambling to get out of the administration. the place was in bloating, people were worried about their reputation. there were all of these searches going on. first of all because of the investigations there were all of these searches for documents, tapes, and it was kind of a difficult chaotic time in the administration, and mr. silberman and mr. rose both said they were looking for someone who would not be afraid of this, who would not be as larry silberman said wimps in the face of the scrutiny -- >> host: they found a non-whimp. >> guest: did they ever. he came crusading in and cut his teeth in the wake of watergate, and larry silberman says he never was drawn to someone so immediately as he was to now justice scalia. and you know both of them, they are quite formidable and had a good time together. >> host: i thought was interesting also that william
rehnquist had been assistant attorney general under nixon and the office of legal counsel. >> guest: that's right and when you are remembering is bill rehnquist had that job but then he in january of 1972 successfully appointed to the supreme court so there was a little gap between when bill rehnquist left the job and and and and scalia came -- >> host: do you think they knew one another? >> guest: no, certainly they knew each other but they haven't dealt with each other much in fact it is interesting. in talking to people like justice john paul stevens, nominated by gerald ford for the supreme court in 75 and who had earlier been nominated by nixon, appointed to the seventh circuit all of these people sort of knew of each other but haven't quite worked together. i'm talking about justice scalia as the court, and justice scalia did not meet or really john paul stevens when he was being
proposed for the supreme court. that fell to ed levy, who then became the attorney general. this is all the post watergate era where the nation went through several attorneys general -- >> host: and there was a lot of turnover -- >> guest: right. so you can imagine this is where justice scalia essentially comes of age in the administration -- >> host: tommy -- i interrupted you but i want you to tell me about the office of legal counsel. i know a little about it, but i think the people watching this program want to know -- this is part of his formation. he was a professor and then served in the administration and then served in the office of legal counsel. it's an interesting position. >> guest: it is. the job is essentially to be the constitutional lawyer to the president to see what is constitutional and what is not. many viewers now know that office because that was the office that produced the torture memos that related to what is going on now, the guantanamo detainees and various cases going forward. other than that though it is the kind of office that really is in the headlines. it's not -- is a brainy office,
it is not usually that prominent to the public it's very prominent among lawyers because it typically drawls someone very much interested in the constitution and intellectual side of the constitution. so a was a very good match -- >> host: small office, produces legal opinions for the administration including matters of constitutional law. >> guest: that's right. >> host: in a sense it is a training ground for a person like bill rehnquist or antonin scalia to be on the supreme court because when you say they do -- that office deals with a lot of things that might ultimately come before the supreme court. >> guest: that's right. as the head of that office he often sparred with members of congress. constantly going to testify before people like ed muskie, people like father robert dryden, very strong liberals who were skeptical of what the ford administration was doing in terms of executive privilege even back then, in terms of, you
know, keeping documents secret and we did he get into that. he loved that. he loved sporting with liberals. host could you think he held his own? >> guest: i have the transcript so he did hold his own but when i talk to him about that, you know in recent years he said i could have done it with one hand tied behind my back. [laughter] as you know is a justice scalia thing to say. >> host: he's not shy. so he served in office of legal counsel. he must have left at the end of the ford administration. >> guest: january 1976. host cut in the carter administration came along, then the reagan administration then what, five, six years -- when was it in the reagan administration president reagan took office in january of 1981 -- when did they put the finger on justice scalia to become an appeals court judge? >> guest: it's interesting, in fact i just said he left in 76 but he actually didn't leave until 77 when jimmy carter was sworn in street he goes to the american enterprise institute, a
conservative think tank and works his way to chicago university. he wanted to go into the reagan administration sooner than he was able. and actually this involves some deals you know, william fred smith. william was on lookout list for solicitor general. that is, as you know because you also held that job, is a very important job, it's the government's top lawyer for the supreme court, the office that is viewed with plastic and become all the men who've held that and have the first woman doing it all the men have warned the morning suit with tales -- it is quite a prestigious job, and also get another intellectual kind of brainy job before the court. and then professor scully at the university of chicago really wanted that job, and he thought he was going to get it. he had what he thought was a pretty good interview with william french smith, an attorney general but rex lee was also up for the job, and bill smith writes in his memoir that i know you are familiar with
some of the late bill smith, he says there was a really close call but he went with wrecks week, and that was a very big disappointment. in fact justice scalia used the word bitter when he talked to me about it. i think it's because he came so close and was a job he thought was tailor-made for him -- >> host: which it was. >> guest: -- he was an advocate and i was a real blow. that came in the spring of 1981, that is when rex lee got the job. and then the reagan administration offers him, justice scalia, a job on the second circuit based in chicago. now he's living in chicago that the time that he doesn't like chicago, which opens to be a home town and i know you spent plenty of time in the upper midwest. but he and his wife, maureen, were plaine east coast folks and did not enjoy their time in chicago that much and were eager to get back to the east coast especially washington. so here he is, having just lost the chance of being solicitor general, being offered a lifetime appointment to a prestigious court of appeals, the seventh circuit based in
chicago, and he decides he's going to wait. he's quick to hold out in hopes that he's going to get a job on the federal appeals court based in washington, d.c.. >> host: he really wanted -- >> guest: he knew because his forte was administrated wall and that is what the court in d.c. handles most of the issue is taking a chance. he had an offer in hand versus one that might not come, but they did. and just a few months later in 1982, he was officially appointed by ronald reagan to the u.s. court of appeals for the d.c. circuit. >> host: said he didn't get to the solicitor general but he got at least i wouldn't say second place, the d.c. circuit is considered to be the second highest court in the land by some people. it's equal with other federal circuit courts but it is in washington and the handles cases many of which go to the supreme court. >> guest: that's right and some people would see if you become solicitor general and have to take some pretty tough stance you might never have been on deck and appointed to the u.s. supreme court.
who knows but it worked out better for him in the end. host koza 82 he goes on budget d.c. circuit. and then when does he get appointed to the supreme court? >> guest: 1986, and the battle there inside is whether he's going to beat robert bork to the nomination. as you know, robert bork had been really the man on deck for the supreme court. he had been a very strong intellectual force behind conservatism -- >> host: and former solicitor general. >> guest: justice scalia senior, he was on the d.c. circuit before justice scalia and in some ways i think people believed it was owed to him. now he did have a hand and then massacred during watergate could result in the firings and attorney general's office and enough controversy that he was passed up in 1975 when ford administration went for justice john paul stevens. but here we are in the mid 80's and the question is after ronald reagan has chosen sandra day o'connor to be the first woman
justice of the u.s. supreme court who will teach you is next. and it falls into inslee and i tell you why -- >> host: welcome he did choose robert bork -- >> guest: but not until 87 which made a big difference because by then the senate has flipped democratic. and so, he chooses justice scalia -- teaches is intensely and 86. president reagan, as you know, was enthralled by the first generation story. he liked antonin scalia's telling heritage. he certainly was a conservative equal to robert bork but he presented a little bit of a different tale. and at that time the administration didn't know whether it was going to get any more appointments. this is 86. and justice scalia seemed a lot healthier. i remember telling it means he was a smoker and i said i didn't know he was a smoker. it was robert bork was a smoker and we were worried about his health. so the administration goes with antennas leave. he skates through the process --
>> host: let me stop a minute because that vacancy was created when warren, chief justice warren burger resigned, right? and instead of going outside the court, president reagan selected william rehnquist, was an associate justice to be chief justice, so there was that confirmation, and then selected scalia to take their rehnquist seat, so didn't they come together at the same time? >> guest: yes and that also helped him. he was helped by his italian american heritage, helped by the fact that, you know, he -- his record was for all intensive purposes and plans light but there was no reason for the senators to probe deeply into how deep his conservatism was. but he followed william rehnquist's battle for chief justice -- was what it was quite -- >> guest: it was, and a lot of liberal groups came out against him to be elevated to chief. they didn't like his record on the supreme court as being so conservative. but he also was someone who had
been quite outspoken when he was assistant attorney general in the office of legal counsel and he had a record that provided, that generated so many more critics. some liberal senators and liberal activist groups had spent all of their fire on the nomination and bill rehnquist gets through and becomes chief justice and then here comes antonette scalia who has this wonderful life story. his nine children line up behind him -- >> host: i was going to ask when you mentioned before he was an only child it turns out he has nine children and how many grandchildren now? >> guest: 30 by have to check. >> host: i asked him once how could he remember all the names of his grandchildren. he said what makes you think i remember all the names of my grandchildren. [laughter] but anyway, he is one of maudine and now he has 30 grand children then. but here he is full life story -- >> guest: the time he's nominated in '86 he has no grand children. his kids line up behind him,
they look lovely. the senators are constantly talking as even the democrats you are so lovely, everything is wonderful, everything's wonderful, and he is so confident in his views he all the answers what he wants to answer and he himself knows he can't go down a path that could be controversial and he's been given lots of advice by his handlers in the reagan administration and close friends to not say anything, and arlen specter was so frustrated, the then republican senator from pennsylvania, was so frustrated during the nomination hearings he writes in his own book about how i don't think i could have gotten even the name, rank and serial number out of the guy, just how he played that committee in so many ways and gets through unanimously from the committee. >> host: i was going to say not just the kennedy but wasn't the vote -- >> guest: 98 through co-coo. >> host: so now we know there's been all these contentious votes for justice sotomayor, chief justice roberts, justice alito, robert
bork a couple of years later, maybe the next year you will tell me, goes down in flames in the confirmation process and justice scalia, one of the more controversial justices and more colorful and more flamboyant, most flamboyant, 98-0. >> guest: but you know, ted, you can't believe all the dialogue even from a hardline liberals. howard metzenbaum opened his conversation, his questioning, his probing by saying it's a shame you beat me and squash the other day. so there's a very good old way thing going on and in fact you probably remember in the book i open with justice scalia even talking about the first softball question from -- list of the federalist society. >> guest: -- exactly right. when he was appearing before the federalist society and the justice holmes itself puts the arms together as if bring them on. and that is -- if he had a good time in fact it the end of the hearings he said i truly enjoyed myself and what i write is i
think he did. >> host: i think he did, too. you have great stories in the book for example senator specter asked an awful question about -- we won't have enough time here but an awful question about property law, and shifting some real -- and then justice scalia without walls tells a great story about two lawyers in new york and a taxicab accident. >> guest: he completely takes over. he hijacks the question and that happened throughout. he hijacks the question, gives his own answer and then it's like okay we are out of time. and later i asked justice scalia about that complete of senator specter's about how he sort of, you know, shifted the question to answer what he wanted to answer and i said do you think he knew the real answer to the question and he said rujano was probably not. >> host: pieces by the time justice scalia finished his answer he had forgotten what the question was. >> guest: the senator did, yes, right. >> host: how does justice scalia -- he is so outgoing and
his opinions, he is blunt. sometimes pretty rough, wouldn't you say in the dissenting opinions or even the opinions he writes challenging the views of his colleagues. how does he get along with his colleagues? i'm going to ask more about the opinions but what is the relationship like? that can be pretty tough stuff. >> guest: initially there's a great story about the justices powell and marshall sitting during oral arguments do you think he realizes the rest of us are here because he starts to dominate the oral arguments and as you know this is a time the bench is filled with quiet justices. right now we have a so-called hot bench where the majority are very much active and firing questions at the lawyer whereas back in 1986 we had a group of mostly older justices who didn't ask a lot of questions. she comes on, only 50-years-old and he's quite aggressive from the bench. so that's the first -- was portales first of all the people out there understand an oral argument in the supreme court is
30 minutes per side, generally, why? and then what happens? >> guest: the lawyer for each side stands up and the justices -- usually start to present the case, and what happens today is that individual justices jump in and ask questions, try to make their own points on things and can be a vigorous affair, you can have 90 questions go body in an hour, very fast-paced, and what happens -- what happened in 1986 it was much more slower pace and a lawyer at the lectern was able to present more of his or her case, really tell a tale, read from notes often and justice scalia comes to this atmosphere and wants to mix it up more. and he does. he becomes quite a force from the bench -- >> host: he is throwing hand grenades out. >> guest: and right now it's much more appreciative because we have justice is like that. but back in 1986 we didn't. we had a much more of a laid-back kind of group of black robe mind. but he starts mixing it up a
little bit more that way than he does also a conference in fact i was just talking to a formal -- >> host: explain the conference. >> guest: it is talking to a clerk yesterday about what goes on. first it is only the nine justices, no law clerks, legal secretaries, staff, no one else, and around a table and they talk in order of seniority. >> host: this is after they've heard an argument when they are deciding the case. >> guest: two times a week, wednesdays to look at the first, some of the early cases of the week to decide how they might preliminary how they will vote on those, how they will resolve those and also on fridays. and what they're looking at is not just how they will vote on cases but what cases they will even take because as you know hundreds of appeals are filed at the supreme court and only to a small handful of those. chris koza the start with the most senior justice. >> guest: right. and during most of justice scalia's time it would have been chief justice rehnquist, laying out the fact of the case and going around the table to say who will vote which way. and justice, chief justice
rehnquist as you know, he went bam, bam very fast, didn't like a lot of debate, felt everyone should show up knowing how to cast their vote and make a short story of it. well, justice scalia sometimes would talk out of turn and the chief justice would have to say we will hear from you in turn, and he was a junior justice, he was supposed to wait until the ninth place. and then also, he wanted to talk more. he wanted a debate. this was his natural style. he was combat it in lots of xin use to read and he learned pretty quickly that's not exactly what it was about and he would complain to friends about what is this all about? so there was frustration and he also didn't like -- at that time in the court history bill brennan was still there controlling a lot so the liberals even though they were more republican appointees on the court the liberals had an upper hand that did not sit well with him either. >> host: okay. while we will talk in a moment or two about some of the opinions. >> guest: great, thank you.
>> "after words" with judd alan biskupic and ted olson continues. >> host: joan, at the end of the conference for some reason -- i mean, they don't, right? the votes are tallied up. they've each casting vote, right? >> guest: that's right. >> host: someone writes an opinion, whoever -- tell us how the opinions -- >> guest: we are talking about private conference the justices have after they've heard oral arguments and everybody results a case and the taking a vote. and the majority side is then going to prepare the opinion for the court. and the most senior justice on that side then assigns the opinion. it's the chief justice, the chief justice has seniority on the opinion. and back in the 80's, chief justice rehnquist often in the
majority, sometimes it would be senior level brennan, could be majority but when it was chief justice rehnquist he would then assign it. early on, i know what you're getting at. when he was assigned to antonette scalia, and it was a close vote justice scalia would sometimes lose the fifth vote because you have to write an opinion that will keep all five justices majority of the line on that. rather than something that reflects your hard and fast view. >> host: may be the vote at a conference would be 5-4, the chief justice rehnquist would say, you know, or justice scalia why don't you write the opinion for the board, and then the senior justice in the minority would decide who would write the dissenting opinion or maybe more than one of them. so justice scalia would embark on writing an opinion and you're telling me that because maybe his opinions were so sharp and out there maybe someone would say my gosh i don't think we
need to go that far and switch around? >> guest: that happen on occasion -- >> host: how do you ever know? tell me how you know that. that's a secret, isn't it? >> guest: not any more. in part because people to tell and also we have treasure troves of justice papers. several justices upon retirement have allowed their papers to become public upon retirement. i made heavy use of the papers of lewis powell, down at washington. they are wonderful papers. >> host: they are memos? >> guest: exchanges on cases and notes between justices. justice powell, justice harry blackmun's papers are the library of congress, justice thurgood marshall's papers are the library of congress, william brennan's papers are mostly of the library of congress, so these justices documents provided a lot of material for me to see what would happen in the drafting process.
and that's where i was able to detect and justice scalia i have lost a majority and you know, from the outside you often wouldn't know that. in fact it's funny you bring this up because i just today heard from a lawyer who argued one of the cases that had been 5-4 in the opposite direction until justice scalia lost the majority and bill brennan switched votes and then went the other way. and i was a lawyer who'd been on the case and didn't know what happened. >> host: he didn't know he almost lost. >> guest: yes, you wouldn't know unless he went to look it up, and i think in the late -- in the early 1990's when justice thurgood marshall's papers became available it was a very big deal to journalists and lawyers and other observers. people started looking at these. but as a matter of routine only law professors and some journalists such as myself spending less time in those papers. >> host: and i think, so they keep a secret, but then after they leave this planet their papers become available and you
can figure not a lot of things that have happened? >> guest: that's right. some of the justices don't in fact i had a conversation with us justice sandra day o'connor about what she would make available in her papers and she said directly do not hold your breath. [laughter] get on with your life. >> host: and it's been to be a long time, right? >> guest: it's going to be a shame. from his point of view he thinks it is nobody's business and some of the fellow justices i'm sure are very happy because when they send a note to a colleague they would like to keep it quiet i think. but for a journalist it's great because then you know what was going on, and it gives you insight into the finished product where all you see is the final law of the land which obviously is what dennis survives this court but it's nice to see the dynamics that produced it. >> host: it is a treasure trove, you are a journalist and historian and you are doing both things in books like this. tell me about the fact that once in a while justice scalia's opinions would be sharply critical of his colleagues.
somewhat disdainful perhaps. and you mentioned as someone pointed out, in your book i can't recall who, says there is sarcasm from time to time. tell us about that. was that true? and did it alienates his colleagues? >> guest: it did in some respects, but they came to embrace it >> host: you do it long enough and you can get away with it or because you smile? [laughter] >> guest: you know, as justice ruth bader ginsburg one of his closest friends said i love me know but i could strangle him. [laughter] life out of the was the sentiment of most of them. justice john paul stevens who is certainly his opposite on the law to read justice stevens the senior little on the bench who said to me he certainly has been effective and he said he's certainly been destructive is what justice stevens said about his colleague. but i think he also took it as part of the intellectual debate. now certainly justice harry
blackmun since retired and passed away was offended by much of justice scalia's tone and by the fine on his documents, in fact in cases that you would be familiar with such as morison versus allyson when justice scalia first drafted a dissent in that case, justice blackmun wrote on it screams it doesn't need to be this long and he was very offended by the tone of. and i have to say justice sandra day o'connor, a retired in january of 2006, was also attended by some of the tone but learned to live with it, and i think that he -- people have said to me was effected? has been he effective with that kind of tone because he's pushed people away like justice o'connor and justice kennedy to some extent. but what he's done, he has probably cost himself a little bit with the moderates on the court. but he's also issued battle cries to people beyond the court and he has become a hero certainly to a lot of conservatives out there. so she has been effected in a
way other justices haven't been effective beyond the bench. >> host: i'm going to ask more about his writing, but i thought -- justice blackmun, you mentioned justice bachmann. i thought there was an interesting piece in your book where one term i can't remember which it was everything had sort of gone wrong for justice scalia and he apparently appeared like he was at the end of the term. they started october with arguments and finishing in june and he had lost one case after the other and i think justice blackmon was feeling sorry for him. can you tell about that? >> guest: this is an interesting anecdote. we are in june of 1996 and justice scalia has lost and that is when he says we've got into the point this is a country. i do not recognize. he's very upset he had lost -- bin in the significant gay rights case, was in the case in terms of single-sex education, he just lost -- that's why i say
you are in this story at every turn. she is very disappointed and at this point, president clinton is an office -- the country is in a position justice scalia feels he is of the minority view and harry blackmon reaches out to him and says i know you're disappointed but i hope after the summer you will get over it and justice scalia right back a very personal note that says, you know, acknowledges his disappointment and says i feel like it's been for naught and this becomes public when harry blackmon's files are opened and justice scalia felt insulted because he felt like he was being reached out to buy a colleague, he lets down his guard and whites back and then it all becomes public and i think that he felt like that was -- he felt a sense of betrayal but for me it was great because i was able to see first hand at the moment just how dejected he was.
>> host: do you think he was ready to quit? there was speculation. >> guest: there was definitely speculation. he was talking to his pals over pizza at the restaurant where he would love to drink his wine and eat his anchovy pizza. he felt sick and tired. he felt weary. in 96 the also just turned 60, which wasn't that big of a -- we are all looking at milestones' kind of thing, and i actually believe he never would have quit because it is so much part of his life blood. this is a job he seems to just thrive on. but people close to him thought he might. >> guest >> host: it's ironic then, someone on the other side of those cases would reach out a hand to him and he would respond, and then later when justice blackmon's papers are available he felt a little bit -- now i guess that means we will never see justice scalia's papers. we wouldn't be holding our breath. >> guest: i don't think we should. plus he doesn't say it the way
harry blackmon as. justice scalia couldn't believe the way -- was to every single -- >> guest: yes in fact we wonder if we ever dropped a note where is in the file. justice scalia just doesn't save like that and doesn't kind of chronicle his life like that. harry blackmon kept a diary that has been useful to historians and journalists and i don't believe justice scalia does. >> host: with his relationship to justice ginsburg they could not -- you would say the difficulty to find two people that work to justices that were more different. he's italian, robust, and sporadic. justice ginsburg is slight, very cerebral, conservative -- >> guest: very soft-spoken. >> host: yes. yet tell about their friendship. >> guest: very long standing
friendship. the first met in the 70's. she heard him give a speech. i wont get into the topic but it was on vermont yankee. an area of administrative law we very close to justice scalia's heart and he gave a speech that only the blackmon professor could love. but she was a professor at the time and she disagreed with everything he said she told me. but she was really taken by his style and she finds him just -- he is so amusing but as she told the senators who asked in her confirmation hearing what is with you and justice scalia and she said he can always make me laugh. so anyway -- >> host: always make me laugh. >> guest: she sees him in the late 70's and remembers hearing him give a speech, disagreeing on the substance of the speech but yet been taken by him. then they both end up being appointees to the federal court of appeals here in washington for the d.c. circuit. and they are both former law professors. and they start exchanging writings between each other and asking each other for advice on
everything from the legal reasoning even though they are coming at cases from different ideologies from everything from the legal reasoning to punctuation. they are both the key intellectual types and various ways. and they both shared love of opera and love of travel and their friendship starts to deepen and toward the end of his tenure on the d.c. circuit in the mid 80's they start to spend new year's eve together and at one point robert bork is actually part of this group and then for lots of reasons in part because of his disappointment to not get on the supreme court becomes awkward to have him in this new year's eve group but they start to spend new year's eve together and with prospective spouses who get along very well, marty ginsburg and maureen scalia. it is an ice for some. although everyone is baffled by it. and as i said, she constantly is irked by things he does, but still they are friends. >> host: and he says i think you write this, he admires her
-- values her advice. he will share opinions with her in the drafting process. >> guest: that's right. and one of her favorite pictures is the time they went to india and they are on this elephant together in these bucket seats and he's in the front and she's in the back and she says it was for weight distribution. she's the only one we know who lies about her weight in the opposite direction. she is such a slight thing and there he is, robust and italian food living figure that he is. but they do enjoy each other's companies to the bafflement of many. >> host: and the new year's eve thing i understand that marty ginsburg, ruth bader ginsburg's husband is quite the chef, and he is a chef but what does he took? >> guest: sometimes with justice scalia has shot because as we know he loves to hunt. here is this queens new york the way who now looks to go down south and go quail hunting, but hunting, elk hunting and
sometimes he will bring back something marty ginsburg can cook up -- >> host: so he kills it which is just like him and marty cooks it. >> guest: right, they have a great new year's eve and he loves wind, loves food. >> host: tell me about his writing style. we talked about that earlier but all i am taken with it. i find it absolutely fascinating. what have you found? >> guest: it is rich with illusion. he will quote everything from shakespeare to funds and west side story. he's constantly invoking all sorts of wonderful literature, song lyrics. interestingly his father who as i said was a professor of romance language collected lyrics and the justice himself who's always been quite musical and will invoke a song in his opinions wifely, punchy, and as you said he hedged and used
sarcasm they could be very sarcastic especially the dissent. >> host: i wouldn't say that three >> guest: i know you wouldn't say that but they are sarcastic. he can't get away with it because then he's writing for a majority of the court. i asked him a couple of times about comments and the opinions and he will say i know that might have been, you know, a little bit sarcastic. but now i've got people's attention. and he likes that. he wants to have his anger in there because he wants attention, he wants to be read and wants his message out. >> host: i think that from what i gather from what you've written i know myself that he knows if he writes in a way that people want to read it people will remember it and people will be persuaded by it. is he just having fun or is it because he thinks that is more persuasive? >> guest: i think the latter he's having fun. first of all he really does enjoy -- i asked about the
writing process and he says i enjoy having written because its work to write. and he enjoys having written but he is energized during the process. what he wants to do is persuade and he loves it when his opinions are devoured and we both know many liberals who even though they would disagree with just about everything he says turn first to his dissent or his riding because it is so engaging and he likes that. he wants his opinions to make the case book. he wants the young law students and future solicitors general, future attorneys general to be reading him. >> host: he has a colorful way of expressing himself. i remember one case he talked about 60,000 people dancing nude in the hoosier dome when it was in no dancing case or something like that. there's always something like that, often something like that that makes his point in such -- >> guest: he is very visual,
and i asked justice stevens once if you were doing this book would you want to know about justice scalia's life and he said where did he get his sense of storytelling and that colorful side and so i started asking his relatives and as you can imagine this big italian family. but his grandfather on his mother's side was quite the storyteller and also the first person on new year's eve to start banging pots and pans out the window of their town house and was quite a colorful figure himself and i think also not only did he get that sense of timing but his father being so interested in words and language, he certainly has a first-rate use of the language. >> host: justice scalia has always been very reticent about the press and a little bit suspicious about the press, and you talk to him and got him to cooperate with your book.
tell that story. >> guest: he was initially reluctant subject and he and i have quite a history together as i said to him once you let me when i was with congressional quarterly magazine, you didn't like me when i reported for "the washington post" now with usa today can we start over and he rode back and said even though i am cicilline i have not been holding a grudge. [laughter] but any way we had ups and downs through the years especially when i was with "washington post" in the 90's up until 2000. and when i told him i signed the contract -- >> host: you did that before you knew you were going to get help from him. >> guest: i did, and that is because i knew his story and i knew i could get to people. i knew -- i'd been watching. my first sit-down interview with him had been 1990 when i was still with congressional quarterly and when you are at the court every day you feel like you have a type of access, so i was confident and frankly
my publisher and i were confident i would be able to tell his story without having a guarantee from him and he wrote back saying to me, once i told him i signed a contract he wrote back saying okay feel free to talk to colleagues and friends and my family but i won't talk to you and i said just keep an open mind, and i began my research and spend a lot of time in trenton where he was born and went to queens and presidential libraries, but through all these judicial archives we've talked about, and i found out lots of things he didn't know about his own family and he didn't know about his own story and we ran into each other at a social occasion and i was telling him things i had found and he did get interested. and i think that what he decided -- at one point he did say you're spending so much time trying to figure out my life maybe i ought to cut you some slack and talk so he started calling me first and how often are we sitting at our desks, we are out and about and i would be
like will he call today, will he not call today? out of the blue he would call and ask about his father's story that i had done research on and then we started talking and i finally said -- >> host: a little advance into the book. >> guest: he wanted information. it's interesting. i don't know how much anybody in his family has done genealogy but i was doing research in the archives and so finally i went in to see him and we started talking and i would record everything and halfway through he said i don't know if this should all be on the record and i said we are already down this path, this is on the record and this is why and i explained and i was very frank about my mission. i was not trying to hold him up as a hero in any way i just wanted to tell his story as thoroughly as possible and finally he said all right so it was all on the record and toward the end when i told him about some of the chapters on catholicism and race and some things from his critics in their ibrahaem have a response and i
said you have been good about being generous with your time and the trade-off is you will know what's in here and i will let you respond to your critics and this is a book written for mainstream audience, so i wanted people to see him in his full list and give his life story but i also wanted to give his sense of himself and the law also. >> host: you also gained his respect and trust. he is not going to agree with everything in here i am sure i mean, no one is happy with what someone else writes about them, you know, but it is really well done and it is so well written by hugh but it is also so much of him and tells his story and i can see that you got his respect and admiration and cooperation because he can see you as an honest person doing your job. i wanted to ask you, you mentioned the catholicism. now there are six justices on
united states supreme court or catholics and nothing like that has ever happened in history. what did you learn about the effect -- and he's a strong catholic, passionate. >> guest: that's right. >> host: how does that affect his jurisprudence and the same question about the other justices. >> guest: that is a good question because it is historic that we have six, chief justice roberts, clarence thomas, antonin scalia, anthony kennedy, clarence thomas and the newest justice alito and newest justice so why sotomayor. i think if you agree justice scalia is most known as a catholic. he talks about the most, his friends say that he believes it is the one true church. he likes the high mass, he likes the idea everybody should observe the holy days and uzi rose reason he is a committed catholic and one of the hardest chapters to light is about his
catholicism and about abortion because many of his critics believe that his views on catholicism influence his view on abortion and i described them as parallel passions, and passion for catholicism and passion for the repudiation of low versus wade that made abortion legal nationwide. and what he says is i read text. i am of original list. my catholic views and none of my personal views influence how why you roe v wade which he finds completely illegitimate. he doesn't believe it has any constitutional grounding and i let him have a say on that and i talked about how important catholicism is to him but i let him say it is not something that influence is my rulings, and i like critics such as university chicago justice stone counter that and then the readers can take away from that. but it is a historic time for catholics on the court, and i think that he more than anybody else sort of embodies the idea that catholicism can influence a person of the law.
>> host: but he says the fact i'm catholic doesn't lead to my jurisprudence on abortion and i can't recall whether you got into this or not but he cites -- he supports the decisions involving capital punishment, which may be against catholic -- >> guest: catholic bishops are against the death penalty. >> host: said he's got a point there. >> guest: look, his approach, i think anybody who understands his approach to original as some would say of course you cannot find in the framers our original idea of the constitution the right to abortion. he has a good argument on that that some people have certainly objected to but he says that is certainly not influenced by my catholicism and you're right on the death penalty he also says that is informed by my original list point of view. >> host: it is in the constitution. >> guest: that's right. >> host: the idea that our regionalism, say a few words
about that and what is the antithesis of our original was some on the court? tell us what that means to him and what he is opposed to on the other side. >> guest: his id is comic back to the 18th century and look what the drafters of the constitution wanted as the law and how what shaped their understanding, what was going on in society. so it's not just the text but is largely the text. the counterpart, and liberals constantly talk about how strong is the counterpart? they definitely do not subscribe to justice scalia's view but they want to more vigorously be a player in the intellectual debate on this but it's hard because it is a much more pragmatic approach to the constitution and right now i think justice stephen breyer has certainly in body that in what he's written in his book active liberty. the idea you don't go back to the 18th century and stay there and what should be the law and constitution. you look what's important now. you look how busbee ten and text
of the constitution involved in the need of society for the viewers who've been around a long time that was embodied with in the thinking of justice william brennan, this notion of a living in the foltin constitution to fit societal demand and justice breyer articulates that now but in a bit of a more pragmatic way. just to say let's be real about what america needs, and let's look at it in a broader sense than just what was happening in the 18th century. what justice scalia says is if i look at it in terms of the text and what the framers had in mind, i want what my personal views influence me, what what my catholicism or any other of my own subjective thoughts come into it. justice breyer says that's hogwash. you're subjective thoughts are coming in any way. don't fool yourself, he says to justice scalia and our original lists in a large way is that
your judgments are always going to influence your decisions here and we are just a little bit more honest about it than the original lists. >> host: the date is fascinating and that is a good a symbol because justice breyer and justice scalia like to go on the road once in awhile and debate with one another and if you can get a ticket to one of those debates it is one of the best things there ever was. now, justice scalia is perceived as a conservative and justice breyer in the stevenson and so forth perceived as liberals but justice scalia is also thought of as a civil libertarian, that he voted to strike down the flag burning statute. can you comment on that? >> guest: i don't think the american civil liberties union would say that he is with them most of the time that he was with them on flag burning and he tells a very funny story. he will see in his speeches come on this show sign consistent in terms what is in the constitution and i didn't think
that the lobby against flag-burning should stand and he kids about how he still can't stand sandal wearing scruffy people who burn the flag as he characterized them but he also kids about the day after the ruling, the first ruling, there were two in 1889 his wife, maureen, came downstairs whistling you are a grand old flag. [laughter] >> host: he's also been on the side of people accused of crime when it comes to the right to confront witnesses and sentencing cases, it is not just flag-burning -- >> guest: there's the slice of criminal law we particularly the seventh amendment where he's been quite active and has been able to pull together an unusual coalition of liberal and conservative justices, justice john paul stevens is with him on these things and we will mention that one, the right to be confronted by the witnesses against you, and he has had quite an influence in making sure statements that were made out of